November 22, 2011

In New Mexico, Navajo communities worry that uranium mining could contaminate the aquifer that feeds their drinking water. In southeastern states from Alabama to Virginia, residents fear a cluster of coal-powered plants will impact their health for generations. And in the Harlem section of Manhattan, advocates say the high rates of asthma among residents are a “direct result from breathing dirty air.”

For these communities and others abutting big industry, worry over failing health and pollution has intensified as the Environmental Protection Agency intends to significantly curtail the number of inspections and enforcement cases it brings nationwide over the next five years.

Those cutbacks — continuing a trend, the Center for Public Integrity found, that began in 2006 and accelerated last year — mean the EPA will conduct thousands fewer inspections and evaluations each year, and initiate and conclude thousands fewer judicial and administrative enforcement cases.

By 2018, the agency would conduct an average of 14,000 federal inspections and evaluations per year across the country. That’s a 33-percent dip from the annual EPA caseloads from 2005-09, and a 30-percent drop from 2012.

By 2018, the EPA would initiate an average of 2,320 civil judicial and administrative enforcement cases a year in the five-year span. The drop: 41 percent from 2005-09 figures, and 23 percent from 2012.

And, by 2018, the agency envisions concluding 2,000 civil judicial and administrative enforcement cases per year, a 47-percent dip from the caseloads in 2005-09, and a 33-percent cut from 2012.

The EPA said it intends to put its enforcement might behind major pollution cases across the country. Under its five-year plan, the agency would focus, for instance, on criminal cases “having the most significant health, environmental, and deterrence impacts.”

“The strategic decision to focus on high impact cases means that the overall number of cases will tend to be lower than in past years,” the EPA told the Center in a written statement. “We anticipate this strategy will result in a higher level of public health protection because of the significant impacts associated with the large cases, and the precedent they set for performance of large facilities across the country.”

Environmental advocates are not swayed. The planned reduction in federal enforcement comes as residents near industry fence lines say states are doing little to protect them.

Johnny Collins, of Kernersville, N.C., holds a large photo of a Duke Energy coal plant during a February 2014 protest near Duke Energy’s headquarters in Charlotte, N.C., over Duke Energy’s coal plants. Duke Energy estimates that up to 82,000 tons of ash has been released from a break in a 48-inch storm water pipe at the Dan River Power Plant earlier in February.

Chuck Burton/AP

Advocates: Cuts to impact minority, impoverished communities

“It’s this perfect storm,” said John Suttles, senior attorney for the Southern Environmental Law Center, a nonprofit handling environmental cases in six states. “I think it’s a really dangerous situation.”

Suttles, based in North Carolina, points to recent environmental incidents in the state including the Duke Energy coal ash spill into the Dan River. In North Carolina, Gov. Pat McCrory worked for Duke Energy for 29 years before taking office — a connection that has put the governor on the defensive over the state’s dealings with the utility giant.

Even before the spill, according to emails obtained by the Southern Environmental Law Center, state regulators consulted Duke Energy before seeking to exclude citizens from settlement talks over groundwater pollution triggered by the utility’s coal ash ponds.

Beginning in 2009, the Center for Public Integrity exposed the environmental perils of coal ash ponds. Earlier this year, the EPA announced it would begin regulating the disposal of coal ash as part of a settlement to a lawsuit filed by environmental groups.

In the southeastern U.S., the environmental hazards extend beyond that one issue, said the law center, among those that have submitted comments to the EPA about its strategic plan.

Suttles told the EPA that each of the six states his group represents — Georgia, North Carolina, South Carolina, Alabama, Virginia and Tennessee — ranks high in terms of adverse health effects from coal-fired plants. “Atlanta, Georgia, and Richmond, Virginia, experience some of the worst health effects from power plants of any metro area in the country,” he wrote.

”It’s come as no surprise that you typically don’t see big power plants and large coal ash impoundments near communities with million-dollar homes,” Suttles said in an interview. “These big industrial sites, statistically, tend to be located disproportionately near poor and minority communities. … So if EPA pulls back, I think these communities are even going to face greater risks.”

EPA enforcement, he and other advocates say, can make a difference. “When EPA is on the beat and EPA is conducting inspections and launching investigations and bringing enforcement actions, it achieves kind of a magnified level of compliance.”

‘Next Generation Compliance’

The EPA’s plan to downshift the number of its inspections, and to focus its enforcement efforts more and more on “high impact” cases, is part of a larger strategy the agency calls “Next Generation Compliance.”

Much of the strategy focuses on using electronic reporting and advanced monitoring devices to keep tabs on pollution more accurately, allowing the agency to target enforcement cases.

“The most effective way to achieve compliance with the law is to make it easier to comply than to violate. EPA is using new technologies and lessons learned about what drives compliance to reduce pollution and improve results,” said Cynthia Giles, assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance, in an article published in The Environmental Forum.

In the early 2000s, the number of EPA enforcement cases initiated and concluded increased steadily, peaking in 2006, a Center analysis of agency numbers shows. Since then, there has been a gradual decline.

In the most recent fiscal year, however, there was a significant drop, as the EPA noted that it had started pursuing larger, more complex cases that it expected would have a bigger payoff. The new strategic plan envisions a further reduction in the number of cases.

By 2018, the plan states, the number of cases concluded each year would be just over half of the average for the period 2000-2013. The number of inspections and evaluations would drop from an average of about 20,000 per year to roughly 14,000.

This approach is driven in part by budget constraints. During tight financial times, the agency said, it must be innovative. That includes using modern technology to monitor and target pollution.

“The burden of monitoring and compliance reporting will be reduced for the EPA and others by investing in state-of-the-art monitoring technology and supporting electronic interaction with the regulated community,” the agency said in its budget plan. “This will allow the EPA and others to more effectively deploy its inspection resources.”

Yet some environmental experts, including a former top EPA official, are, essentially, asking the EPA to back up its words with concrete action.

“In the final analysis, our government is measured by what it does and not what it says,” Eric Schaeffer, former director of the EPA’s Office of Civil Enforcement, and now director of the nonprofit Environmental Integrity Project, wrote to the EPA.

“We hope that EPA is not signaling that it will reduce the quantity or quality of the enforcement actions it brings against the big polluters,” Schaeffer wrote. “There is no substitute for federal action in these situations, and EPA is already only able to address a handful of the serious violations that need attention.”

He added, “NextGen goals include making regulations ‘easier’ to comply with, but EPA will need to explain what that means. Presumably, it does not mean relaxing emission limits or adopting monitoring requirements that make it impossible to ever establish that a violation has occurred.”

“To be clear, Next Gen will not replace traditional enforcement,” the agency said. “Next Gen is designed to support and strengthen our commitment to deter violations and increase compliance with environmental laws.”

Environmental worries in New Mexico, New York

The EPA’s Giles, in her write-up in the environmental publication, said advanced monitoring technologies “can help make these problems obsolete. Monitoring devices are becoming more accurate, more mobile, and cheaper, all of which are contributing to a revolution in how we find and fix pollution problems.”

That approach, she said, will be coupled with an EPA commitment to move away from paper reporting. For years, facilities have submitted reports to the agency on paper, and then an EPA staffer would manually enter the information on computer. “Or, in a time of declining budgets, the paper sits in a corner unopened, until someone has time to examine the data and see if any violations appear likely,” she wrote.

Important pollution information could fall through the cracks. E-reporting will move the reports more seamlessly — and make government more transparent, the agency said. “If you want to view paper records, you need to travel to a government office and sit there with your pad and pencil taking notes,” Giles noted. “How much easier would it be if the same data could be reviewed online, creating government that is more open and gives people information about facilities and pollution that affects them?”

Yet, in some corners of the U.S., environmental advocates say some of the neediest communities could be left out. One example: In New Mexico, where Native-American communities confront pollution concerns.

“Electronic means of communication don’t reach people in those communities, because people in those communities generally speaking don’t have access to the Internet,” said Douglas Meiklejohn, executive director of the New Mexico Environmental Law Center. “There are large areas of Native American reservations where there isn’t any electricity, much less access to the Internet.”

For such communities, he said, in-person contact — with inspectors literally sitting down with residents and seeing what they see — is more meaningful.

“And it gives them the ability to take the EPA officials to their homes, and say, now look there’s this uranium mine … 100 yards across the street from us. Look at it, and feel the way the wind is blowing,” said Meiklejohn, who is among those to file memos challenging the EPA’s shifting enforcement focus.

“And that’s something that you can’t really get if you’re sitting in an office in Dallas or Washington or Denver or some other EPA office, and somebody writes that down on a piece of paper for you. It just doesn’t have the same impact.”

In New Mexico, the law center represents two Navajo communities working to prevent leach mining of uranium from contaminating groundwater. In another community in Albuquerque, residents are dealing with health issues and air pollution from a demolition debris landfill.

In New York, a group called WE ACT for Environmental Justice said the EPA cutbacks would be detrimental for Harlem, where, the organization said, residents suffer escalated rates of asthma and cardiovascular disease and development effects in babies are elevated as well.

“We cannot understand how the Agency will advance human health and cut some of the most critical activities of the Agency to reducing pollution across the board,” the community-based organization wrote to the EPA.

The EPA’s presence can make a tangible difference with polluters and those battling pollution, Jalonne L. White-Newsome, WE ACT’s federal policy analyst, said in an interview.

“Keeping that constant eye on our industrial partners can have drastic impact,” she said. “To me when you’re kind of taking those resources away, especially from the areas and the people that really need them, I don’t think it’s going to play out too well.”

Some communities, White-Newsome said, are “fighting to breathe clean air every day.”

“You’re saying public health is important, but this is a different message that communities are receiving,” White-Newsome said. “It’s great to write these great laws, but what it really boils down to is enforcement. And what is the message you are sending to the communities?”